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REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL APPELATE JURISDICTION

CIVIL APPEAL No.  5820  of 2012 ( Arising out of SLP (Civil) 21824 of 2007)

Cantonment Board, Jammu & Ors. … Appellants

Versus

Jagat Pal Singh Cheema … Respondent

J  U  D  G  M  E  N T

RANJAN GOGOI, J

Leave granted.

2. This  appeal  is  directed  against  the  judgment  and  order  dated  

7.2.2007 passed by the High Court  of  Jammu and Kashmir  whereby the  

High Court has allowed the Writ Petition filed by the respondent challenging  

the punishment of removal from service that was imposed on him by the  

Cantonment Board, Jammu. It may be noticed, at the outset, that the High  

Court had allowed the Writ Petition of the respondent on the ground that the  

order  of  the  Officer  Commanding-in-Chief,  the  Command,  affirming the  

order of the Cantonment Board removing the respondent from service was

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passed  on  the  basis  of  an  invalid  reference  made  to  the  Officer  

Commanding-in-Chief,  the  Command,  under  the  provisions  of  the  

Cantonments Act, 1924 (hereinafter referred to as the ‘Act’).  

3. A brief conspectus of the relevant facts would be necessary at this  

stage.  

The respondent, Jagat Paul Singh Cheema, was employed as a Section  

Officer  with  the  Cantonment  Board,  Jammu.  On  various  charges  a  

departmental enquiry was held against the respondent,  whereafter he was  

removed from service by an order dated 6.9.1997. The appeal filed against  

the said order was dismissed.  The respondent,  therefore, moved the High  

Court of Jammu & Kashmir challenging the order of removal from service,  

interalia, on the ground that the report of the enquiry held against him was  

not  furnished  to  him  at  any  stage.  The  High  Court  by  its  order  dated  

4.4.2001 allowed the writ petition and directed the ‘Punishing Authority’ to  

re-decide  the  matter  after  affording  an  opportunity  of  hearing  to  the  

respondent.  In compliance with the said directions the report of enquiry was  

furnished  to  the  respondent  and  the  matter  was  reconsidered  by  the  

Cantonment Board in its  meeting held on 18.5.2001. In the said meeting  

while the non-official members (five in number) were of the view that the  

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order of punishment imposed on the respondent should be set aside and he  

should be reinstated in service, the President of the Cantonment Board and  

two  other  ex-officio  members  supported  the  initial  decision  of  the  

Cantonment  Board  to  impose  the  punishment  in  question.  Thereafter,  it  

appears,  that  at  the  instance  of  the  Chief  Executive  Officer  of  the  

Cantonment Board the matter was referred to the Officer Commanding-in-

Chief, the Command.

4. The said authority issued a show cause notice dated 6.8.2001 to the  

Cantonment Board and on receipt of its reply, by order dated 22.11.2001,  

affirmed the penalty of removal of service imposed on the respondent.  

5. Aggrieved by the aforesaid order dated 22.11.2001, the respondent  

again moved the High Court. The writ petition filed (WP No. 3039 of 2001)  

was allowed by an order dated 15.2.2006 passed by a learned Single Judge  

holding  that  the  Officer  Commanding-in-Chief,  the  Command,  was  not  

vested  with  any  power  under  the  Act  to  annul  the  decision  of  the  

Cantonment Board and the power of the said authority under the Act only  

extended  to  giving  of  directions  to  the  Cantonment  Board  for  

reconsideration of the matter.  Aggrieved by the said order of the learned  

Single Judge, the Cantonment Board filed a Letters Patent Appeal before a  

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Division Bench of the High Court which was answered by the impugned  

order dated 7.2.2007. The Division Bench, by its aforesaid order, took the  

view that under the provisions of the Act, upon a reference made to him, the  

Officer  Commanding-in-Chief,  the  Command,  was  duly  empowered  to  

annul a decision of the Cantonment Board after giving an opportunity of  

showing cause to the Board.  However,  in the present  case,  the reference  

made was not authorized and in consonance with the provisions of Section  

51 of the Act. The power to annul the decision of the Board, though vested  

in  the Officer  Commanding-in-Chief,  the Command,  therefore,  could not  

have  been  legitimately  exercised  in  the  present  case.  Accordingly  the  

Division Bench affirmed the conclusions of the learned Single Judge, though  

for reasons different.   

6. Shri Luthra, learned Additional Solicitor General, appearing for the  

appellant-Board  has  urged  before  us  that  the  power  of  the  Officer  

Commanding-in-Chief, the Command to deal with matters decided by the  

Cantonment Board is set out in the provisions contained in Section 52 of the  

Act. It is submitted that Section 52 is in two parts. While the first part deals  

with  the  power  of  the  Officer  Commanding-in-Chief,  the  Command,  in  

respect of decisions of the Board which are not covered by a reference made  

under Section 51 of the Act, the later provisions of Section 52 specifically  

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deals  with  matters  referred  to  the  Officer  Commanding-in-Chief,  the  

Command, under Section 51(1) of the Act.  According to Shri Luthra the  

power of the Officer Commanding-in-Chief, the Command, under the first  

part  of  Section  52  is  broad  and  expansive  and  capable  of  authorizing  a  

decision to annul any resolution of the Board. The exercise of power under  

the first part of Section 52, according to Shri Luthra, is not contingent on the  

manner in which the decision of the Board may have come to be placed  

before the Officer  Commanding-in-Chief,  the  Command.  In other  words,  

according to Shri Luthra, the power under Section 52 can be exercised not  

only in situations where no reference is made under Section 51 but such  

power will be available to strike down a decision of the Board even in cases  

where such a decision may have come before the Officer Commanding-in-

Chief, the Command, by way of an invalid or incompetent reference. Shri  

Luthra has further submitted that such a view would not be inconsistent with  

the provisions of Section 52 (2) in asmuch as the said provision specifically  

deal with the power of the Officer Commanding-in-Chief, the Command to  

deal with the decisions of the Board in cases where a specific reference is  

validly made by the Board under Section 51 of the Act.  Shri Luthra has  

further  buttressed  his  arguments  by  relying  on  the  well-established  

proposition of law that so long as the power to perform an act in a particular  

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manner is vested under the statute, the exercise of such power cannot be  

faulted on the ground of a wrong recital  of  the specific provision of  the  

statute.  In  support,  Shri  Luthra  has  relied  upon several  decisions  of  this  

Court which will be noticed at a later stage of the present order.

7. In reply, Shri Banerjee, learned senior counsel appearing for the  

respondent has contended that it is not in dispute that in the present case the  

decision of the Board taken in the meeting held on 18.5.2001 was referred to  

the Officer Commanding-in-Chief, the Command, by the President of the  

Board under Section 51(1) of the Act. Pointing out the provisions of Section  

51, Shri Banerjee, has urged that under Section 51(1) a reference can be  

made  to  the  Officer  Commanding-in-Chief,  the  Command,  only  in  a  

situation where the President of the Cantonment Board dissents from any  

decision of the Board on the ground that such a decision, in the view of the  

President, is prejudicial to the health, welfare, discipline or security of the  

forces.  The reasons for such dissent  on the grounds spelt  out  by Section  

51(1),  according  to  learned  counsel,  is  required  to  be  recorded  in  the  

Minutes of the meeting of the Board. In the present case though a reference  

has been made by the President to the Officer Commanding-in-Chief, the  

Command, the reasons why such a reference was considered necessary by  

the President have not been recorded. Therefore, according to Shri Banerjee,  

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the reference to the Officer Commanding-in-Chief, the Command, was not a  

valid reference authorized by the provisions of Section 51(1). It is contended  

that  as  Section  52(2)  is  exhaustive  of  the  powers  of  the  Officer  

Commanding-in-Chief,  the  Command,  in  considering  a  decision  of  the  

Board that has been referred to him under Section 51(1), the said authority  

cannot  proceed to exercise  the power vested in  him under Section 52(1)  

while in seisin of a matter referred to him by the Board under Section 51(1).   

According  to  learned  counsel,  the  power  under  Section  52(1)  will  be  

available for exercise only in a situation where the decision of the Board is  

before the Officer Commanding-in-Chief, the Command, otherwise than by  

way of a reference.  

8. Before adverting to the respective submissions advanced on behalf  

of the parties, it will be convenient to extract the provisions contained in  

Sections 51 and 52 of the Act which are extracted below:  

“51. Power to override decision of Board --  (1) If the President dissents  from any decision  of  the  Board,  which  he  considers  prejudicial  to  the  health, welfare or discipline of the troops in the cantonment, he may, for  reasons  to  be  recorded  in  the  minutes,  by  order  in  writing,  direct  the  suspension of action thereon for any period not exceeding one month and,  if he does so, shall forthwith refer the matter to the Officer Commanding- in-Chief, the Command, the reference being made, save in cases where the  Officer Commanding the District is himself the Officer Commanding-in- Chief,  the Command,  for the purposes of this  Act,  through the Officer  Commanding the District, who may make such recommendations thereon  as he thinks fit.   

(2)  If  the  District  Magistrate  considers  any decision  of  a  Board  to  the  

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prejudicial to the public health, safety or convenience, he may, after giving  notice  in  writing  of  his  intention  to  the  Board,  refer  the  matter  to  the  Government; and, pending the disposal of the reference to the Government  no action shall be taken on the decision.

(3) If  any Magistrate  who is  a  member of a Board,  being present at  a  meeting, dissents from any decision which he considers prejudicial to the  public health, safety or convenience, he may, for reasons to be recorded in  the  minutes  and  after  giving  notice  in  writing  of  his  intention  to  the  President, report the matter to the District Magistrate; and the President  shall,  on receipt  of  such notice,  direct  the suspension of  action  on the  decision for a period sufficient to allow of a communication being made to  the District Magistrate and of his taking proceedings as provided by sub- Section (2).

52. Power  of  Officer  Commanding-in-Chief,  the  Command,  on  reference  under  Section  51  or  otherwise  -- (1)  The  Officer  Commanding-in-Chief, the Command, may at any time-

 (a) direct that any matter or any specific proposal other than one which  has been referred to the Government under sub-Section (2) of Section  51 be considered or re-considered by the Board; or

(b) direct the suspension, for such period as may be stated in the order,  of action on any decision of a Board, other than a decision which has  been  referred  to  him  under  sub-Section  (1)  of  Section  51,  and  thereafter cancel the suspension or after giving the Board a reasonable  opportunity of showing cause why such direction should not be made,  direct that the decision shall not be carried into effect or that it shall be  carried into effect with such modifications as he may specify.

(2)   When any decision of a Board has been referred to him under sub- Section  (1)  of  Section  51,  the  Officer  Commanding-in-Chief,  the  Command, may, by order in writing,-  

(a) cancel the order given by the President directing the suspension of  action; or   (b) extend the direction of the order for such period as he thinks fit; or   (c) after giving the Board a reasonable opportunity of showing cause  why such direction should not be made, direct that the decision shall  not be carried into effect or that it shall be carried into effect by the  Board with such modifications as he may specify.”

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9. Section 51 authorizes the President of the Cantonment Board to  

dissent from a majority decision of the Board, if he considers the decision of  

the Board to be prejudicial to the health, welfare, discipline or security of the  

forces. If the President of the Board arrives at any such conclusion, he has  

been  vested  with  the  power  to  suspend  the  decision  of  the  Board  for  a  

specified period, not exceeding one month, for reasons to be recorded in  

writing. However, Section 51 of the Act requires the President to make a  

reference of the matter to the Officer Commanding-in-Chief, the Command.  

Section  52  of  the  Act  deals  with  the  power  of  the  Officer  

Commanding-in-Chief,  the  Command  in  respect  of  the  decisions  of  the  

Board.   Section  52,  really,  is  in  two parts.  The first  part  deals  with the  

powers of the Officer Commanding-in-Chief, the Command, in respect of  

decisions of the Board that may have come to his notice or placed before  

him otherwise than by way of  a  reference made by the President  of  the  

Board under Section 51(1). The second part of Section 52 specifically deals  

with the power of the Officer Commanding-in-Chief, the Command, to deal  

with the decisions of the Board which have come before him by way of a  

reference made under Section 51(1) of the Act.  Both parts of Section 52  

authorize  the  Officer  Commanding-in-Chief,  the  Command,  to  annul  a  

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decision of the Board. However, before doing so a show cause notice to the  

Board is required to be issued.  

10. In  the  present  case  the  order  dated  22.11.2001  passed  by  the  

Officer Commanding-in-Chief, the Command, which was under challenge  

before  the  High  Court  specifically  recites  that  power  is  being  exercised  

under  Section  52(1)  of  the  Act.  The  said  provision  deals  with  

matters/decisions  of  the  Board  that  may  have  come  before  the  Officer  

Commanding-in-Chief, the Command, otherwise than by way of reference  

under  Section  51.  The  aforesaid  conclusion  reasonably  follows  from  a  

reading of the provisions of Section 52(2) of the Act which deals with the  

powers of the Officer Commanding-in-Chief, the Command, in respect of  

the matters/decisions of the Board that may have come before him by way of  

reference under Section 51(1) of the Act.  The question that confronts the  

Court  is  whether  the  two  shades  of  power  under  Section  52  has  to  be  

understood to be available for exercise in specific water tight compartments  

which are mutually exclusive and inconsistent to each other.

11. Certain facts not in dispute and which may have a relevant bearing  

to the issue arising for determination as noticed above may now be taken  

note of. The President of the Board while referring the decision of the Board  

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dated 18.5.2001 to the Officer  Commanding-in-Chief,  the Command, did  

not  record  any  satisfaction  that  the  majority  decision  of  the  Board  was  

prejudicial to the health, welfare, discipline or security of the forces and the  

reasons therefor. There may, therefore, be substance in the argument raised  

on behalf of the respondent that the reference made in the present case was  

invalid. The second undisputed fact that will be required to be noticed is that  

the Officer Commanding-in-Chief, the Command, before passing the Order  

dated 22.11.2001 had issued show cause notice to the Board as required by  

either of the limbs of Section 52.

12. The  power  vested  in  the  Officer  Commanding-in-Chief,  the  

Command, by the two limbs of Section 52, though at first blush, may appear  

to be intended to apply and operate in specific fields, in our considered view,  

such an interpretation of Section 52 would run contrary to the legislative  

intent behind the conferment of the power in the Officer Commanding-in-

Chief, the Command under Section 52. The power conferred by Section 52  

in the Officer Commanding-in-Chief, the Command, is a power to correct  

the decisions of the Cantonment Board. The necessity for such corrections  

may arise in myriad situations and the difference in the mode and manner in  

which  such  matters  may  reach  the  Officer  Commanding-in-Chief,  the  

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Command,  namely,  by  way  of  reference  under  Section  52  or  otherwise  

cannot be determinative of the contours for exercise of the power. It is a  

power vested in a high functionary of the Cantonment to be exercised for the  

reasons spelt out by the statute. If that is the purpose for which power has  

been vested by the statute, in our considered view, the power conferred by  

the first part of Section 52 should not be, in any manner, curtailed by reading  

a limit  thereon so as to exclude from its  purview matters  that  may have  

reached  the  specified  authority  by  way  of  an  invalid  or  incompetent  

reference. To read the provisions of Section 52(1) to cover situations where  

the decision of the Board may have reached the Officer Commanding-in-

Chief, the Command, otherwise than by way of a valid reference, as in the  

present  case,  apart  from  suo  moto exercise  of  the  power  by  the  said  

authority,  according  to  us,  would  effectuate  the  legislative  intent  behind  

enactment of Section 52. The above manner of reading the power conferred  

by  Section  52(1)  will  also  not  render  the  provisions  of  Section  52(2)  

nugatory in asmuch as Section 52(2) deals with situations where decisions of  

the Board have reached the Officer Commanding-in-Chief, the Command,  

by way of a valid reference.  

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13. The power to interfere with any decision of the Board is vested in  

the  Officer  Commanding-in-Chief,  the  Command,  and  the  provisions  of  

Section 52 merely enumerate the slightly different modes of exercise of the  

power in the different circumstances contemplated therein. The principle of  

law relied upon by the learned counsel for the appellant, namely, that if the  

power to perform a particular act is traceable to a specific provision of the  

statute the Court must lean in favour of the action taken, therefore, appears  

to be correct. In this regard support can be drawn from the decision of this  

Court in State of Sikkim v. Dorjee Tshering Bhutia1; Municipal Corporation  

of the City of Ahmedabad v. Ben Hiraben Manilal2;  N. Mani v. Sangeetha  

Theatre3 and  B.S.E. Broker’s Forum, Bombay v. Securities and Exchange   

Board of India4.  

14. In  view of  the  above discussion  we are  of  the opinion that  the  

conclusions  reached  by  the  High  Court  ought  not  to  be  sustained.  We,  

accordingly,  allow this  appeal  and set  aside the order of  the High Court  

passed in the LPA.

1 (1991) 4 SCC 243 2 (1983) 2 SCC 422 3 (2004) 12 SCC 278 4 (2001) 3 SCC 482

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15. We have noticed that certain questions with regard to the merits of  

the order dated 22.11.2001 passed by the Officer Commanding-in-Chief, the  

Command, were raised in the writ petition. As the writ petition as well as the  

LPA arising therefrom were decided on the question of jurisdiction of the  

Officer Commanding-in-Chief, the Command, to pass the impugned order  

dated  22.11.2001,  the  High  Court  had  no  occasion  to  go  into  the  said  

questions raised.  We, therefore,  remand the matter to the High Court for  

consideration of all the other contentions raised in the writ petition by the  

respondent herein which issues will now be decided by the High Court as  

expeditiously as possible.

...……………………J.             [P SATHASIVAM]

                                ………………………J.             [RANJAN GOGOI]

New Delhi, 9th August, 2012.      

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